The New Face of the Supreme Court
by Ada Wallace
The death of Ruth Bader Ginsberg during the 2020 election shook public trust from the already-faltering American populace. The announcement of her replacement, Amy Coney Barrett – a religious extremist – resulted in predictable pandemonium.
When the death of a single person can upend the perceptions of democracy for millions of people, it begs the question; how democratic was the institution to begin with? While the Supreme Court has certainly handed down a number of landmark human rights victories, it has historically been corporate1, reactionary2, and fundamentally undemocratic in nature.
With Barrett’s appointment rammed through just a week before the recent presidential election, after over 60 million votes had been already been cast, Democrats did little more than mere theatrics to stop the nomination and would go on to issue (likely) empty threats and, in the case of Biden himself, conjure up ambiguity on the issue of packing the Supreme Court or enforcing term limits.
Democrats would love to have voters believe that it is they who will pick up the mantel of Ginsberg and spear-head progressive change, but alas, Democrats are typically happy to support a cause in words only, allowing the Courts to dictate our rights as they please.
Amy Coney Barrett
Amy Coney Barrett blows the Religious Right clear out of the water on the American political scale, holding views so extreme as to make the average Republican look left-wing. She drew most attention from her involvement in the ultra-conservative, patriarchal Christian group, People of Praise, where she served as a “Handmaid,” and her ties to an anti-abortion group, St Joseph County Right to Life3, which supports policy as outlandish as criminalizing in vitro fertilization.
More concerning though, Barrett, like her Trump-appointed peers Brett Kavanaugh and Neil Gorsuch, has proven herself more than willing to challenge the principle of stare decisis4, writing in 2013 that in “controversial cases,” such as Roe v. Wade, stare decisis is “not a hard-and-fast rule.”
According to Barrett’s nomination hearing, abortion is not the only issue she may find unsettled. She also described climate science as “controversial,” expressed uncertainty as to whether Medicare was legal, and said the Voting Rights Act was “outdated.”
While Barrett’s personal views are certainly extreme, she is less of a novelty and more a culmination of decades of hard work by corporate interests to cement capitalist victories in court. The crisis is in the way she was appointed and by whom. She was rammed through in a largely partisan move by a president who never won the popular vote (and who would go on to lose the next election) and by a Senate that is not accurately representative of the nation.
Calls for Reform
Amy Coney Barrett’s appointment immediately ignited calls for reform to the Supreme Court. While adding additional seats to the Supreme Court is among one of the most constitutionally-sound methods of reform, even a layperson can see that this method ultimately leads to a tit-for-tat, philosophical arms-race between the two dominating capitalist parties.
However, there is some historic and constitutional precedent for many other reforms. Of the reforms suggested, they can essentially be boiled down into one of two categories: Partisan Balancing or Jurisdiction Stripping.
While the constitution grants the right of selecting Supreme Court justices to the President and allots life-time appointment to Justices, much else about how the Supreme Court functions is left up to, well, the Supreme Court itself. As it would turn out, there is some historic and constitutional precedent for Congress to enact rules upon the Supreme Court. Which begs the question – Is this power something we want to grant to our Congress?
1. Partisan Balancing
A Partisan Balance reform would set an even number of seats for the High Court and ensure an equal number of Justices from each party. How would cases play out after that? There is some suggestion for leaving the Court as it would be. The threat of a 5-5 deadlock would potentially ward off litigants seeking to bring highly partisan cases to the Court. Or, in other suggested reforms, some type of lottery system, committee selection, or even Supreme-Court selection would be used to nominate a group of tie-breaking justices from lower courts.
The constitution also says nothing of what type of majority ruling is required to determine Court decisions. Congress could potentially pass legislation requiring a 2/3 majority or unanimous agreement in order for a ruling to be decided. Alternatively, Congress could change the number of justices required to agree before the Court can hear a case.
No matter which path the suggested reform takes, it only ensures that the Supreme Court only passes what a larger majority of a very small group of people agrees upon. In the history of the Supreme Court, such agreements are incredibly common (unanimous or near-unanimous agreements are actually the norm!)5 outside of some of the more hot-button issues which partisan balancing aims at. We may save ourselves of tragic rulings on social issues like the repeal of Roe v Wade, but we will undoubtedly see a the same old unity of the court in perpetuating what we already have: a top-down society with an interest in the suppression of the working class, so by no means is the issue of the Supreme Court solved through partisan balancing.
2. Jurisdiction Stripping
While the constitution designates the Supreme Court the Highest Court of the land, it allows for some oversight by Congress as to what cases it may see. In fact, both Republicans and Democrats have supported instances of so-called “jurisdiction stripping” in the past. It has even been upheld by the Supreme Court itself6. Of course, the “how” and “when” of the practice is usually only supported when it benefits one side or the other.
As recently as 2018 and as far back as 18687, the Supreme Court has upheld Congress’ right to pass legislation restricting the jurisdiction of the Court. Congress could pass singular, federal laws with a provision that prevents the Supreme Court from reviewing it. Alternatively, it could pass legislation barring the Supreme Court or lower courts from hearing certain types of cases altogether.
Such a use would be heralded by liberals if used to pass legislation guaranteeing abortion rights, a wealth tax, or environmental protections. However, in the past, Republicans have attempted to remove abortion, school prayer, and busing cases from Supreme Court jurisdiction. It’s easy to see how that power could be used for abuse when in the wrong hands.
Of course, such use first requires Congress to pass this kind of legislation.
On its face, jurisdiction stripping seems like a good, non-partisan move. Any move that makes legislation more democratic is, without a doubt, a good one. However, we’ve seen that Congress, the Senate especially – and thus frequently the legislation passed in general – is far from democratizing.
This reform also calls into question the balancing of powers that is supposed to exist among the three, co-equal branches. If jurisdiction stripping becomes common place, who is to stop Congress from passing legislation that abuses human rights, such as the Patriot Act or Military Commissions Act? That’s assuming the Supreme Court would find laws such as these to be unconstitutional in the first place, which throughout history it has been disinclined to do.
Precedents for Thee, but Not for Me
While fears about the new Supreme Court overturning the 2020 election has yet to be and will not be realized, attacks on abortion, immigrant rights, LGBTQI, anti-discrimination, and voting rights mounted with the Trump presidency and have not disappeared. What brings us into uncharted territory, though, is the alarming number of justices on the Supreme Court who are now willing to play fast and loose with precedent. Of course, the rulings of the courts are not sacred to us, but legal protections are tangibly important here.
As of the time of this writing, Brett Kavanaugh has, optimistically, been projected as the most likely swing vote. However, both Kavanaugh and Barrett join Neil Gorsuch and Samuel Alito in opposition to precedent regarding so called “pre-enforcement challenges,” most notably in how they relate to abortion restrictions8.
While the question of Roe v. Wade is likely to go unanswered for the time being, we will undoubtedly see Planned Parenthood v. Casey’s “undue burden” test pushed to its limits, with a majority of justices now onboard with tossing out precedent in favor of seeing how state’s abortion restrictions play out individually before ruling against them.
However, it’s not just abortion cases threatened by this radical approach to precedent. Prior to Trump, the John Roberts Court oversaw the degradation of decades of precedent, chipping away at the ability of the working class to pursue class-action, human-rights, and discrimination lawsuits. And now the Kavanaugh Court has too, overturning a 40-year-old precedent9 and a 35-year-old precedent10 within his first year on the Court. In a 2019 case11, the 75-year-old “Auer Deference Doctrine,” which allows independent agencies to interpret the statutes they administer, narrowly avoided overturn. The new Court, with the addition of Barrett, will no doubt be eager to take on the doctrine in its war against the “Administrative State.”
Of course, the Court’s deference to stare decisis depends heavily on how much the precedent protects the interests of the capitalist class. This hypocrisy was on grand display in the Supreme Court’s recent handling of the 2020 elections. The Supreme Court invoked Purcell principle, which maintains that courts shouldn’t change election rules close to an election, to overturn a lower court’s ruling that prevented a South Carolina rule – enacted in October, after voting had already started – requiring witnesses for absentee ballots. However that same decision was then used as justification by lower courts to block a flurry of election rules making it easier to vote – sometimes within weeks or days of the election.
Already the conservative court has taken an aggressive direction in its cases – less so in the content of the cases as much as the decisions it has made and the method by which it has made them. Under Trump’s presidency, the Supreme Court has increasingly taken up cases from the so-called, “Shadow Docket,” summary decisions made outside the court’s main docket that allow emergency requests to bypass lower courts. Shadow Docket cases are decided largely without oral arguments and rarely with explanation. It’s in this type of summary judgment that the voting fiasco occurred and that we’ve already seen an only months-old precedent thrown out without justification under the new Barrett Court12. These type of actions harken back to the words written by Justice Steven Breyer in a 2019 dissent: “Today’s decision can only cause one to wonder which cases the Court will overrule next.”13
Whether the Court overturns Roe v. Wade overnight or if it takes the “death by a million paper cuts” approach, we are likely to see a degradation of the precedent to the point of blind robbery of legal protections, as we have already begun to see with voting rights and worker’s rights.
Regardless of what flavor reform you choose, each proposed reform inevitably places more responsibility in the hands of Congress, which is just as much a cesspit of social backwardness, undemocratic in nature, and increasingly viewed as illegitimate.
Whether the Court is locked in stalemate on certain cases or legislatively prohibited from ruling on them, the result is a loose association of battling nation states with no overarching rights guaranteed. It doesn’t take much creativity to imagine what that would look like for women. Where, in one state, a woman or healthcare provider could be charged with murder for carrying out an abortion, but in the next, access abortion freely, using state funds. That doesn’t even cover the possible affects on the market price of abortion procedures or other functions carried out by places like Planned Parenthood which would, in turn, further spiral unevenness between states due to complications with state subsidies.
It doesn’t even really take imagination to foresee how a situation of uneven laws will play out. As we’ve seen with marijuana laws, we have millions of black men serving life sentences for petty drug crimes while just a few states over marijuana, medical and recreational, is being distributed legally among the dominantly white population. And prior to even that that, there was a massive gap in equal sentencing (not that any person should be sentenced whatsoever due to smoking marijuana). As it turns out, distributing rights unevenly is a weapon in the hands of the already powerful against the already vulnerable in further widening power gaps. This is unacceptable.
What is required, then, to protect and guarantee the human rights of the working class, LGBTQI people, black people, immigrants, etc.? While we would not oppose any effort to make the Supreme Court more democratic or tear it out of its aristocratic origins, it looks like no powerful change is on the way. Because of the stark reality, we are shown that the only thing that can consistently demand and guarantee the rights of the working class is the working class itself, organized and united.
We know the laws and the whole legal system itself handed down to us are not in our favor, so we, the wide working class, must come up with our own solution(s). First, we in the must understand that we need to protect ourselves from those enforcing the corrupt laws handed to us from the high courts. To this end, we at Workers Power raise, in our program, the aim of establishing people’s tribunals directly in the communities of those affected by organized violence and discrimination, as well as anywhere else necessary or able. This is to settle disputes within communities and even more so to provide organized outlets for the frustration with the legal system’s handling of our lives and for making decisions for action accordingly.
We do not bring up tribunals with the idle-minded intention of making this a red-taped legal reform to bring before Congress or the courts. No, an approach like this is impossible given the nature of Congress’ interest in undemocratic methods to keep their government (and the capitalist class) stronger. We also do not pose this as a pie-in-the-sky to pat ourselves on the back for having a “nice idea.” Rather, we recognize that the need for tribunals or similar bodies for disputes and for the protection of vulnerable people is a non-negotiable necessity for long-term social victories. Self-organized tribunals are and will be the natural result of being forced to seek alternatives to the current system and being spurred or empowered to act on those alternatives. This is true if for no other reason but the bankruptcy and circular trajectory of the currently existing alternatives of reforming the legal system or, even worse, going backwards into conservative courts. It is absolutely necessary that we unite this solution with the call for the organized political movement for socialism since the capitalist Congressional parties are no avenue for what we need.
An organized working class movement is more important than being an ideal or scholastic alternative to the ruling parties, however. How do we reach the point where the working class can legitimately flex its might against the aristocratic heritage of the US justice system? What is any solution, ours or others, if it does not have organized support? Nothing. Just words or isolated tragedies.
The long-term prognosis of people’s tribunals tied with a full-scale movement for socialism is being able to tear down slanted legal systems and the the governance of capitalist elites like the Supreme Court and Congress. Our bodies of societal self-organization would be brought up to great levels, capable of prosecuting the old system with mass input. Further, it would mean that these issues we have discussed such as corporate interests in court, the erosion of reproductive rights, racism, LGBTQI discrimination, etc. can be targeted at their common social roots beyond the legal system, lessening the danger we face and the need to respond to in the first place. A religious extremist Supreme Court Justice would be made a meaningless relic of the past. To reach these ‘fantastical’ heights of human liberation, the short-term consists of many long and even difficult efforts to strengthen ourselves politically.
These efforts would broadly include but not be limited to:
- Unionization which has the potential to bring production (and therefore everything) to its knees in support of economic or political demands i.e. defending reproductive legal rights.
- United front struggles to consistently push forward on the issues that matter while having an open atmosphere of political discussion on disagreements where we currently lack
- Organizing the unorganized which provides much to gain for those with little to lose
- Building links with and strengthening struggles for liberation of repressed peoples who need justice the most and are consistently the best fighters against all oppression.
- Raising a revolutionary program for uniting the most advanced and capable fighters of the various struggles above and more within a fighting party for revolutionary change
4. The method of precedent by which the US court system operates. Precedent set in earlier rulings is how the courts will interpret the law in similar cases down the line unless another landmark case makes the great effort to overturn the old ruling or introduce a contradictory ruling. For more information: https://www.law.cornell.edu/wex/stare_decisis
13. See 9